Will New Bipartisan Criminal Justice Reform Plan Fly?


As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations.

There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department’s budget, putting a squeeze on other spending.

Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.

Now, two key House members from both major political parties are weighing in with a “Safe, Accountable, Fair, and Effective Justice Act”– dubbed SAFE — they suggest could go even farther than the Senate measures.

They are James Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, who have long headed the House subcommittee dealing with crime. (Scott recently moved from the panel, officially called the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and turned his role over to Rep. Sheila Jackson Lee of Texas.)

In a packed announcement yesterday that featured several other House members and an array of criminal justice advocates, Sensenbrenner and Scott touted their proposal, calling for quick passage and endorsement by the Senate.

The House duo’s summary of their bill promises a wide range of improvements, saying it will “reduce recidivism, concentrate prison space on violent and career criminals, increase the use of evidence-based alternatives to incarceration, curtail over-criminalization, reduce crime, and save money.”

Cracking Down on ‘Over-Criminalization’

“Over-criminalization” may be the most significant word in the list, since Republicans joined the effort partly because conservatives have long complained that federal prosecutors have gone overboard in charging unwitting citizens with violating little-known government regulations.

Sensenbrenner and Scott headed a House over-criminalization task force that has spent the last year and a half holding hearings on the issue that led in large part to the new bill. Sensenbrenner contended yesterday that over-criminalization is a “major driver” of the federal prison count, although he conceded that no one know how many such cases are filed.

Liberals are much more interested in drug cases, arguing that mandatory minimum penalties dating from the 1980s have ensnared thousands of Americans serving terms of five or ten years or longer for relatively minor violations. Scott said that two-thirds of federal inmates serving mandatory terms in drug cases are not narcotics kingpins. He argued that in the end, the nation’s high incarceration rate “generates more crime than it stops.”

One notable aspect of yesterday’s announcement was the presence of a wide range of organizations supporting the bill, including the American Civil Liberties Union, the conservative Koch Industries, the American Conservative Union Foundation, Families Against Mandatory Minimums, and the Police Foundation.

Jake Horowitz of the Pew Charitable Trusts Public Safety Performance Project, which advocates for sentencing reform in states, presided at yesterday’s session. Pew said it provided “technical assistance” in the bill’s drafting, and Sensenbrenner was frank about saying that Congress is “learning from innovation in the states.”

Pat Nolan of the conservative foundation, a former California legislator and ex-white collar crime inmate himself who has made a career of campaigning for sentencing reform, declared that the current system is “dysfunctional” because it does not change prisoners’ behavior and can cause more harm to those being sentenced than did their crimes.

“Conservatives are alarmed at the cost and growth of the criminal-justice system,” he said.

Like much legislation on complex issues that moves through Congress, the devil is in the details. In the Senate, some senior Republicans, notably Judiciary Chairman Charles Grassley (R-IA) have resisted a major cutback in mandatory minimums, arguing that tough sentences over the last few decades have helped lower the national crime rate.

Restrict Mandatory Minimums

This same kind of opposition could arise in the House. The Sensenbrenner-Scott bill would restrict mandatory minimum sentences of people deemed a “leader or organizer of a drug trafficking organization comprised of five or more participants,” but it was not immediately clear how many federal drug defendants that might affect.

More controversial could be a “safety valve” provision that would allow defendants to avoid mandatory minimum sentences if their conduct “is substantially related to a history of mental illness, persistent drug abuse or addiction…[or] combat-related trauma” or if they suffer “significant physical, mental, psychological or emotional distress or abuse and [were] directed to commit the offense by another individual who played a significantly greater role.”

Some prosecutors and police are likely to contend that such a law would provide too many loopholes for serious offenders.

One other concern about the reform effort overall was expressed by conservative advocate Nolan in a New Yorker magazine profile this week. He worried that one sensational crime or an increase in the crime rate could derail the bipartisan push for reform.

“We’ve all said that we’re one bad incident from having this [movement] erode on us,” he said.

For now, though, the House bill at least insures that both sides of Congress will be engaged in the criminal justice debate over the next year or so. The theme of advocates will be, as Koch Industries’ Mark Holden put it yesterday, “We don’t need to be tougher on crime, we need to be smarter on crime.”

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. He welcomes readers comments.

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